Office of the Attorney General
State of Texas

Re: Whether members of the Board of Licensure For Nursing Home
Administrators may participate in certain trade association
activities.

Dear Ms. Station:

You inquire whether ex-officio members of your board can be
paid the per diem and actual expenses provided for in section
4(3) of article 4442d, V.T.C.S. Section 3 of article 4442d,
V.T.C.S., requires that the Commissioner of Human Resources, or
his designee, and the Commissioner of Health, or his designee, be
ex-officio members of the board. Section 4(3) of article 4442d,
V.T.C.S., provides in part that 'Board members shall receive a
per diem of $25.00 while engaged in Board business together with
actual and necessary expenses.'

Article 4442d, V.T.C.S., makes no distinction between ex-officio and regular board members with respect to payment of
expenses. We believe ex-officio members are to receive expenses
and per diem unless the Constitution prevents them from doing so.
Article XVI, section 40 of the Texas Constitution, which
prohibits one person from holding two civil offices of emolument,
does not bar a state employee from holding a civil office of
emolument. See Letter Advisory No. 30 (1973). Article XVI,
section 40 of the Texas Constitution, permits a nonelective state
officer to hold other nonelective offices under the state, if the
other office is required by state law. He may receive
compensation for the second office, if the provisions of article
6252-9a, V.T.C.S., are complied with. See also Attorney General
Opinion H-5 (1972). If the legislature desires to prohibit
receipt of per diem by these officials, it may enact a statute to
that effect.

You also request our opinion about whether a board member
violates article 4442d, section 3A(1), V.T.C.S., if he receives
compensation from a trade association for teaching a continuing
education seminar or other course for nursing home
administrators. Article 4442d, section 3A(1), V.T.C.S., provides
in part that 'A member of the board . . . may not: (a) be an
officer, employee, or paid consultant of a trade association in
the nursing home industry.' The article is based on the same
policy considerations forbidding any state employee from
accepting other employment which might impair his independence of
judgment in the performance of his official duties. See V.T.C.S.
art. 6252-9b. It appears as though the legislature has
determined that serving as an employee of a trade association in
the nursing home industry might impair a board member's
independence of judgment. A board member who receives
compensation from a trade association might not be as independent
as the legislature requires; therefore, board members may not
accept any employment from trade associations, including teaching
positions.

The legislature has not spoken specifically to whether board
members can serve as unpaid advisors or directors of trade
associations. We believe section 3A(1) of article 4442d,
V.T.C.S., prohibits a board member from serving as a director of
a trade association in the nursing home industry even if he
receives no compensation for that service. Section 8(b) of
article 6252-9b, V.T.C.S., prohibits a state officer or employee
from accepting other employment which might impair his
independence of judgment in the performance of his official
duties. Whether this provision bars a particular activity, such
as that of an advisor, is a fact question to be decided by the
Texas Board of Licensure for Nursing Home Administrators. See
Attorney General Opinion H-1223 (1978).

Finally, you request our opinion about whether the National
Association of Boards of Examiners For Nursing Home
Administrators is a trade association. This Association is
generally composed of members of agencies that examine, license
or register Nursing Homes and their administrators. 'In general
use the words 'trade associations' convey the meaning of an
association of employers in the same trade.' People ex rel.
Padula et al v. Hughes, 16 N.E.2d 922, 924 (Ill. App. Ct. 1938).
In the context of this statute it does not appear that this
national association of regulators is a trade association. The
board must still consider as a question of fact whether
association with or employment by this association would impair a
board member's judgment in his official duties under article
6252-9b, V.T.C.S.

SUMMARY

The ex-officio members of the board may receive per diem and
actual expenses. A member of the Board should not accept any
sort of payment for services rendered from a trade association in
the nursing home industry. Board members may not serve as a
director or other officer of these associations, but they are not
absolutely barred from acting as unpaid advisors as long as their
independence is not jeopardized. Whether article 6252-9b,
V.T.C.S., prohibits unpaid service as an advisor must be
determined by the board on a case by case basis. The National
Association of Boards of Examiners For Nursing Home
Administrators is not a trade association under article 4442d,
V.T.C.S.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Ted L. Hartley
Executive Assistant Attorney General

Prepared by Peter Nolan and Susan Garrison
Assistant Attorneys General